Modern divorce: Wiretapped teddy bears, $120,000 in fines

Digital recording tools are so cheap and simple to use that it's easy to deploy them without thinking through the consequences. A Nebraska mother and grandfather found this out the hard way last month when they were hit with a combined $120,000 penalty for wiretapping after sticking an audio recorder inside a young girl's favorite teddy bear.

Though the mother claimed only to be concerned with her child's welfare, the judge found that the indiscriminate use of the recording device had violated the privacy of numerous people, each of whom were entitled to $10,000.

Looking for abuse

Duke and Dianna married in 2001, had a baby girl in 2003, and separated less than four months after the child's birth. They were divorced in mid-2004 by a Nebraska state court, and Dianna received custody of the child. In late 2007, Duke challenged this order and asked that custody be awarded to him; in response, the state court gave Duke “unsupervised parenting time” with the child. A typically messy family breakup quickly became something else.

Just before Duke's first unsupervised visit, Dianna bought a small digital recorder online. Dianna unstitched a bit of her daughter's favorite teddy bear—known as "Little Bear"—and stuck the recorder inside, stitching the animal back up afterwards. The recorder never left the bear's guts after this, except when the animal was washed. With no voice activation feature, the gadget simply recorded everything that happened in its presence, and Dianna periodically unstitched the bear just enough to insert a USB cable and download the audio recordings to her computer.

She did it, she said, suspecting that Duke was abusing their daughter both physically and verbally. The recording took place from January through the middle of May 2008, when a court hearing over the daughter's custody approached. At that point, Dianna burned all of her stored recordings to compact discs and gave the set to her father, Sam, who transcribed them for her. Some of these recordings were unedited, though Dianna admitted in a later deposition that others were selected to show the “most severe and damaging verbal and physical abuse” of the daughter.

All of this material was then turned over to Dianna's lawyers, who submitted it to the state court and waited for a ruling on its legality. In the summer of 2008, the state judge decided that the recordings were not admissible as evidence in the custody trial, since they violated the Nebraska Telecommunications Consumer Privacy Protection Act and were therefore obtained illegally.

On the day the ruling came down, Dianna took the recording device out to her driveway and smashed it to bits with a sledgehammer. She claimed to delete the recordings from her computer, and her father said that he deleted the transcripts from his computer. Problem solved? Not quite.

A right to privacy

Duke was furious about all the surreptitious recording and he eventually sued Dianna and her father Sam in Nebraska federal court, alleging that she had violated not only Nebraska law but the federal Wiretap Act. Federal charges against one's ex-wife—especially charges that involve a teddy bear—aren't common, but the animosity had been building for years after the divorce.

Dianna had previously hired two private investigators to investigate Duke. The first was tasked with finding out where he lived and was asked “to prove he was an alcoholic," as the judge in the federal case put it. The second private investigator was hired in 2007 and apparently placed a GPS device on three different vehicles used by Duke in order to track his movements.

In October 2007, when Duke challenged his ex-wife's custody over their daughter, Dianna “alleged that Duke abused drugs and alcohol and was abusive” towards the girl. To document this “abuse,” Dianna had taken a huge variety of home photos of her daughter which were designed to show possible evidence of mistreatment. But Duke hired a doctor to examine more than 200 of these pictures and the doctor concluded, “The fact that this poor girl had to sit through all these photos I find disturbing.” According to the doctor, the photos showed common medical issues or the typical bumps and bruises of childhood, but little evidence of any physical abuse.

The bugging of Little Bear, then, was hardly the first time Duke had been the target of surveillance. When Duke filed the federal lawsuit against Dianna in 2009, he also rounded up five other plaintiffs whose conversations had been recorded by the bear. One plaintiff, a cousin of Duke's, at one point had the bear in his van for several days after it was left there accidentally; the cousin, going through his own divorce at the time, was upset that his conversations had been recorded and eventually distributed to people involved with Duke and Dianna's custody case.

Another of the plaintiffs was a social worker who monitored "supervised visits" of children and who had driven the daughter between her parents' houses. The social worker was already unhappy about being involved with the case because Dianna had once tried to "hire someone to follow her outside of visits," but she elected to stay on because the daughter was making "significant progress" during her visits with Duke. Finding out that many of her own conversations had been recorded affected the social worker professionally, as she "stopped taking private cases due to the invasions of privacy caused by this incident."

(The bear also impacted the daughter's life directly, as the daughter left her daycare after the operators learned that the bear had been "bugging" the site.)

In total, then, the case was brought by Duke and five other plaintiffs, all of whom alleged Wiretap Act violations against Dianna and her father. Defense lawyers argued that Dianna could give “vicarious consent” for recording on behalf of her daughter, which would give the recordings at least the consent of one party. But when federal magistrate judge F.A. Gosset III ruled on the case three weeks ago, he pointed out that this was immaterial; the bear had "recorded many oral communications made by each of the plaintiffs" and to which the daughter was not a party. Under federal law, this amounted to a wiretap, and one which the defendants had intentionally tried to use.

The Wiretap Act allows people to file civil lawsuits and to recover either actual damages or statutory damages of $10,000. In this case, the judge hit Dianna with a $10,000 damage award—one payable to each of the six defendants. Her father Sam received the same penalty, for a total payout of $120,000. No punitive damages were awarded, nor was anything given to the plaintiffs for invasion of privacy or mental suffering.

In his ruling, the judge noted that the Wiretap Act has a strict standard which prohibits all wiretapping—even that of a parent looking to hear conversations with her child—unless specifically exempted by the law.

Technology law attorney Evan Brown called the case a tough decision, as "a parent fearing for the safety of his or her child might have strong reasons to resort to eavesdropping to protect the child." Even the judge seemed to agree that there might be some merit to this argument, but he noted that it was for Congress to determine the law, and that the existing law here was clear.